In the federal criminal system, when a person is arrested for a crime, or a corporation is being investigated for criminal conduct, credit for cooperating with the government can be obtained which can translate into a lower sentence. Federal law enforcement officials may ask a corporation’s representatives to cooperate by identifying wrongdoers in the corporation, identifying and producing relevant documents and/or testifying about corporate practices. However, when the request to cooperate is made by the federal prosecutors, it may infringe on a criminal defendant’s Constitutional rights, such as the right to confidential communications with his/her attorney.

Last month, the Department of Justice issued new policies regarding how federal prosecutors are to handle the balance between credit for cooperation and the privileged communications involving a corporation and its employees. The new policies indicate that the government will not base credit for cooperation on whether a corporation waives the attorney-client privilege (communications about the case between a client and the attorney) or the work product privilege (documents and information created in anticipation of preparing for and litigating the case). Rather, credit for cooperation will depend on the disclosure of facts. In other words, whether a corporation waives either privilege will not be the issue. Whether the corporation discloses the information sought, regardless of whether it is protected by the attorney client privilege or work product privilege, will determine whether credit is received.

It is helpful that the government is not specifically expecting and anticipating a suspect or defendant to waive his/her protected attorney-client and work product privileges when deciding if credit for cooperation is appropriate. However, in many cases, this may be a distinction without a difference, when the government is looking for information that falls within one or both of the privileges. Then, it will be up to the corporate representatives and the criminal defense attorney to decide whether waiving the privilege is in the best interests of the client(s). Additionally, it is important to note that the DOJ indicated there are two exceptions to this new policy, but those exceptions were not identified in the August 28, 2008 press release.

Another new policy mentioned in the DOJ press release regarding credit for cooperation indicated that the government will no longer hold it against a corporation if it advances attorney’s fees to its employees, officers and directors. When a corporation is being investigated, many employees, officers and directors may be implicated. These individuals have a right to an attorney, and it may be in the corporation’s best interest to help them retain an attorney. Different individuals may need an attorney different from other individuals and/or the corporation itself depending on the issues and any conflicts that may arise. In any given corporate investigation, there may be several criminal defense attorneys needed to handle the various and conflicting issues that arise among those affected. This policy appropriately allows the corporation and its employees, officers and directors to secure an attorney and have their rights thoroughly protected.

Other new policies were discussed and can be found in the press release here.